Friday, December 7, 2012

NC COA Decisions, Nov. 20, 2012

State v. Barnett.  Appeal of 2d rape conviction. -- William Barnett, Iredell County.

Allegation was from 1985, when the victim was 16 and the defendant, her uncle, was 26. The victim reports that she got drunk with her uncle, took a "yellow pill" for a headache, passed out/blacked out, and woke up in a sex act with her uncle. Victim described prior molestation (touching) when she was younger by this uncle.

Over objection, the court allowed 404(b) evidence of sex acts with other cousins.

Held that the admission of the prior bad acts were not error under 404(b), as they showed a pattern of uncle handsy and his nieces.

Remanded to correct clerical errors (wrong box checked).
 
State v. Grice.  Appeal of manufacturing marijuana conviction / denial of motion to suppress. -- Jerry Grice, Johnston County.

Police went to defendant's home to investigate anonymous tip. From the driveway, one of the officers "looked around the residence" and saw marijuana plants growing in a bucket, beside an outbuilding.  Police seized the plants, then came back with a search warrant.

Held: The officers did not have a legal right to walk across the defendant's back yard and seize the plants. While they were in plain view, this did not give a right to the officers to enter the curtilage and seize them, as there was no exigent circumstance. The defendant was not home and there was nothing to prevent the officers from securing the area and getting a warrant.

New trial.

State v. Hope.  Appeal of Assault with a deadly weapon with intent to kill inflicting serious injury (AWDWIKISI). -- W. D. Hope, Randolph County.

Defendant went to victim's house because, either the victim was hitting on his wife or the victim owed him money. Then beat him in the face with a metal pipe. Defendant, in statement to police, said the victim threw the 1st punch and pulled the pipe, which defendant took from him.


Defendant requested self-defense instruction for non-deadly force; court was only going to give one on deadly force, defendant then requested no self-defense instruction.

First, no error to refuse to give the non-deadly force self-defense instruction, as it was not a correct statement of law in the situation. Second, no plain error in failing to give the other instruction, since the court did so at the defendant's request.

Finally, no error in failing to give simple assault as a lesser, because there was uncontroverted evidence of serious injury.

State v. Huss. Appeal of kidnapping, sex offense and rape convictions. -- Wayne Huss, Lincoln County.

Defendant and victim met at self-defense martial arts classes taught by the defendant. During breakup, sex occurred. Victim reports rape, defendant alleges it was consensual.

Held: Trial court erred in failing to dismiss the charges.  A rape/sex offense can only be found if: (1) force is used; or (2) the victim is "physically helpless"--defined as unconscious or physically unable to resist.

The court instructed on physical helpless theory of rape, but no evidence was presented that the victim was physically helpless: she was never unconscious and is otherwise able-bodied. The mere fact that defendant was trained martial artist and much bigger than the victim does not mean she was "physically helpless."

Reversed.

State v. Jones and White.  State appeals non-suit ruling on obtaining property by false pretenses  -- Eric Jones and Jerry White, Mecklenburg County.

After verdict of guilty, trial court threw out all the obtaining property by false pretenses charges and trafficking in ID theft charges. The only conviction that stood was an ID theft conviction against Jones. State appeals.

During a traffic stop of Jones, police found credit cards for four people who had been checked in to a nearby hotel by White. Evidence shows Jones used one of the credit cards at Tire Kingdom to get new tires for his car.

No error on OPFP: indictment didn't list what was stolen or the value. Listed only "services" from Tire Kingdom. Defective.

No error in trafficking. Indictment didn't list name of person (or that the name is unknown) who the IDs were transferred to. Defective.

Elmore dissents.


State v. Martin.  Appeal of satellite-based monitoring. -- Kenny Martin, Moore County.

Found it did not violation 4th by requiring defendant to submit to search and seizure.

State v. Sergakis.  Defendant tried for larceny, conspiracy, false report and breaking and entering. Jury convicted on all but breaking and entering. -- Nicholas Sergakis, New Hanover County.

First, sufficient evidence of larceny over $1,000 when victim testified that the computers taken were worth $1,100.

Second, error to instruct jury that they could convict the defendant for conspiracy to commit larceny or breaking and entering. The indicted count was just felony breaking and entering. Error to instruct on conspiracy to commit larceny, which was not a charged crime. Plain error.

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